[Cites 4, Cited by 0]

Orissa High Court

Jyoti Sankar Baliarsingh vs Union Of India .... Opp. Parties on 24 March, 2026

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P(C). No.26004 of 2022
           In the matter of an application under Articles 226 & 227 of the
           Constitution of India.
                                           ....
           Jyoti Sankar Baliarsingh              ....             Petitioner
                                       -versus-

           1. Union of India                              ....               Opp. Parties

           2. Chief Personnel Officer, East
           Coast Railway

           3. Divisional Railway Manager,
           East Coast Railway

                            Advocates Appeared in this case
                    For Petitioner         -       Mr. N. R. Routray, Mr. J. Pradhan,
                                                   Mr. T.K. Choudhury, Mr. S.K.
                                                   Mohanty, Advocates

                    For Opp. Parties       -       Mr. S. Swain, Senior Panel Counsel
                                                   Mr. A. K. Roy, Senior Panel Counsel


                                                ....
   CORAM :
             HON'BLE MR. JUSTICE KRISHNA SHRIPAD DIXIT
               HON'BLE MR. JUSTICE CHITTARANJAN DASH
   -----------------------------------------------------------------------------------------
                     Date of Hearing & Judgment : 24.03.2026
   -----------------------------------------------------------------------------------------
PER KRISHNA S. DIXIT,J.

This Petition filed essentially under Article 227 of the

Constitution of India, other companion provision, namely, Article

226 having been ornamentally employed, seeks to call in question

the Cuttack Central Administrative Tribunal's order dated

29.08.2022, whereby Petitioner's O.A. No.260/0001017 of 2012 has

been negatived. In the said O.A., he had called in question the order

of OPs in denying engagement to him essentially on the grounds that

he was over-aged; there was change of the Policy Guidelines; and

there was no requirement of services of anyone much less the

Petitioner.

2. Learned counsel appearing for the Petitioner submits that the

first ground as to his client being over qualified was faltered by a Co-

ordinate Bench of this Court in the earlier round of litigation, i.e.,

W.P.(C) No.3318 of 2018 disposed off on 12.07.2022, whereby

matter was remitted to the Tribunal for consideration afresh; despite

that the Tribunal glossed over the issue and that itself constitutes first

infirmity on the face of record. Secondly, he submits that there was

no change of Policy Guidelines and the Tribunal grossly erred in

holding to the contrary in paragraph-5 of the impugned order.

Thirdly, the Tribunal blind foldedly accepted the contention of OPs

that there was no requirement of services of anyone much less the

Petitioner. He draws our attention to the RTI information, which his

client has procured at the hands of OPs to the effect that pendente lite

as many as 31 persons were engaged in Category-D as substitutes

and therefore, the impugned order is liable to be voided.

3. Learned Senior Panel Counsel-Mr. Roy appearing for the OPs

with equal vehemence makes submission in justification of the

impugned order and the reasons on which it has been constructed.

He tells that the Policy Guidelines were changed and that there was

no requirement of services of the Petitioner. He turned the pages of

the case papers in undertaking this exercise. Learned Panel Counsel

tells us that now the Petitioner having been over-aged for

employment, no relief can be granted in the changed circumstances.

4. Having heard learned counsel for the Parties and having

perused the petition papers, we are inclined to grant indulgence in

the matter as under and for the following reasons:-

4.1. The first contention of learned counsel for the Petitioner that

no citizen can be denied the benefit of public employment or State

largesse only on the ground that he is over-aged, has to be accepted

in view of declaration of law by the Apex Court in Chandra

Shekhar Singh v. State of Jharkhand, 2025 INSC 372. A Co-

ordinate Bench of this Court, in W.P.(C) No.3318 of 2018 vide order

dated 12.07.2022, had faltered the very same ground which the

Tribunal had earlier assigned in denying relief to the Petitioner. That

being the position, the Tribunal was not expected to gloss over the

issue and therefore, as rightly submitted, this is the first error

apparent on the face of the impugned order, which needs to be set at

naught.

4.2. The second submission of learned counsel for the Petitioner

that there was no change of Policy Guidelines, which governed the

engagement of services of persons of the kind again needs to be

countenanced, inasmuch as the Tribunal misconstrued the document

as being different from the earlier one, when they were one and the

same. This could have been ascertained just by turning the pages of

the said documents that were produced in series. Thus, second

lacunae in the impugned order, is demonstrated.

4.3. The last contention that there was no need for the services of

Petitioner at all and therefore, the Tribunal rightly denied relief to

him again cannot be accepted because during the long drawn legal

battle, as many as 31 persons of the kind have been engaged by the

OPs, which fact is vouched by the RTI answer, a copy whereof

avails at Annexure-13 of the petition. This document being a part of

the record has not been disputed by the other side, rightly.

4.4. All the above being said, now, the relief as sought for by the

Petitioner cannot be granted to him because he has turned to be over-

aged for employment. That does not mean, no relief can be granted

by the Court in the changed circumstances, Petitioner not being

responsible for all that. Time and tide wait for none, goes the saying.

If a scrupulous litigant is prejudiced because of long pendency of his

litigation, Court can do justice on the principle of ex debito justitiae

and an argument to the contrary would result into right thinking

people losing faith in the judicial process. In matters like this, award

of some monetary compensation would undo the injustice, by way of

recompense. In our considered view, a sum of Rs.5,00,000/-

(Rupees Five Lakh) only , if paid to the Petitioner, injustice done to

him can be undone, at least to some extent.

4.5. We have taken the above view in W.P.(C) No.22397/2018

between Sudhansu Nanda v. Collector-cum-District Magistrate,

Sambalpur, disposed off on 20.01.2026. Paragraph 4.3 of the said

judgment, which is relevant, reads as under:

"4.3. AS TO AWARDING DAMAGES BY WAY OF SECONDARY REMEDY WHEN PRIMARY REMEDY CANNOT BE GRANTED:

(i) Judgment & orders are not meant for photo framing. Courts and Tribunals do exist for maintaining the practical rights of citizens.

They cannot turn away a worthy cause by quoting some jurisprudential theories. It was Justice Oliver Wendell Holmes of U.S. Supreme Court, who in DAVIS v. MILLS, 194 US 451 (1904) has observed as under:

"Constitutions are intended to preserve practical and substantial rights, not to maintain theories..."

An English Court in Ashby v. White, 92 ER 126, awarded damages for infringement of the right to vote, even in the absence of demonstrable damage when vote was intended to a candidate who had eventually won the election by majority. The Court acted on the maxim injuria sine damno. Since, right to appointment that had become concrete by the Tribunal's order dated 05.09.2002, case of the petitioner stands on a higher footing. There is infringement of the right and there is prejudice caused to the petitioner because of denial of appointment. Thus, there is injuria coupled with damage.

(ii) When primary remedies in terms of orders that are entered after due adjudication, cannot be granted for one or the other reason, the Court or Tribunal cannot send back a victorious party in the legal battle, empty handed. All exercise should be undertaken to grant secondary remedy such as, damages, compensation or costs. This approach is not reflected in the impugned order of the statutory Tribunal and that would constitute an error apparent on the face of the record warranting interference of this Court."

After all, all standard Books on Jurisprudence including the one by

Amartya Sen's 'The Idea of Justice' broadly support this view.

In the above circumstances, this Petition is allowed in a

different form. A Writ of Certiorari issues quashing the impugned

order of the Tribunal; Petitioner's O.A. No.260/0001017 of 2012

having been partly favoured a Writ of Mandamus issues to OP No.1

to pay to the Petitioner a sum of Rs.5,00,000/- (Rupees Five Lakh)

only within eight (8) weeks, failing which the delay, if brooked,

would carry an additional levy of Rs.500/- per day for the first thirty

days and Rs.1,000/- for each of the days next following.

The additional levy component shall be recovered from the

erring officials of department, personally.